*Local Rule 47.5 provides: "The publication of opinions

that have no precedential value and merely decide particular

cases on the basis of well-settled principles of law imposes

needless expense on the public and burdens on the legal

profession." Pursuant to that Rule, the Court has determined

that this opinion should not be published.

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 95-10204

Summary Calendar

ANTHONY GILL,

Petitioner-Appellant,

VERSUS

WAYNE SCOTT,

Respondent-Appellee.

Appeal from the United States District Court

For the Northern District of Texas

(4:94 CV 394 Y)

( August 23, 1995 )

Before REYNALDO G. GARZA, JONES AND BARKSDALE, Circuit Judges.

PER CURIAM:*

BACKGROUND

Anthony Gill was indicted by the State of Texas on July 30,

1992 for committing robbery while on parole. The Texas Board of

Pardons and Paroles revoked his parole after conducting a hearing
2

and determining that the robbery violated the conditions of his

release. Since the indictment, Gill has sought habeas relief four

times, twice in federal court and twice in state court, to avoid

conviction for this robbery.

Gill filed a pre-conviction application for a state writ of

habeas corpus on January 11, 1993. There is no record of a ruling

on this application. In June 1993, Gill filed a pre-conviction

petition for habeas relief in federal court under 28 U.S.C. § 2241,

seeking to enjoin the state prosecution for robbery. He argued

that because the state had already proven robbery in the parole

revocation hearing, the doctrine of collateral estoppel and the

Fifth Amendment's double jeopardy clause prevented a subsequent

prosecution for the robbery itself. On July 12, 1993, Gill pled

guilty to the robbery.

Gill filed a motion in the federal habeas proceeding in

November 1993 to void the guilty-plea conviction. The district

court dismissed Gill's federal habeas petition, adopting the

magistrate judge's proposed findings that the guilty plea mooted

Gill's attempt to enjoin prosecution and that the double jeopardy

clause did not apply to parole revocation proceedings. This Court

affirmed, noting that the doctrine of collateral estoppel has no

constitutional dimension independent of the double jeopardy clause.

Gill v. Texas, No. 94-10116, slip op. at 3 (5th Cir. June 7, 1994),

cert. denied, 130 L.Ed.2d 354 (1994).

Gill made a post-conviction petition for habeas relief in

state court on October 21, 1993, alleging the following
3

infirmities: 1) ineffective assistance of counsel at trial for

failure to research and promote Gill's double jeopardy claim; 2)

violation of due process rights for the state court's failure to

address the pre-conviction habeas petition; 3) violation of due

process and equal protection rights because the state court had no

jurisdiction to find guilt after Gill filed his first petition for

federal habeas relief; and 4) violation of due process and equal

protection rights because Gill's jeopardy amendment claims were not

addressed before criminal proceedings commenced. The state

district court dismissed the habeas petition on November 11, 1993.

The Texas Court of Criminal Appeals denied Gill's appeal on January

12, 1994, without written order.

Having exhausted his state remedies, Gill filed a postconviction petition for federal habeas relief on June 9, 1994,

pursuant to 28 U.S.C. § 2254. The four claims in this petition are

identical to those raised in the October 21, 1993 state petition

and include the double jeopardy claim Gill raised in his first

federal petition. The district court granted the Respondent's

motion to dismiss the petition as an abuse of the writ on February

17, 1995. This timely appeal followed. 

ANALYSIS

Gill claims that his second federal habeas petition was not an

abuse of the writ and was dismissed erroneously. We need not

inquire whether this latest petition was an abuse of the writ.

Dismissal was appropriate because the four claims in Gill's
4

petition for habeas relief lack merit. We will consider those

claims in turn.

Gill states that he had ineffective assistance of counsel

because his attorney failed to file pretrial motions contesting the

state's right to prosecute him based on double jeopardy and because

his attorney was not aware of and did not research the law that

Gill claimed supported his double jeopardy claim. Gill also states

that as a result of this ineffective assistance, he was deceived

into pleading guilty. These arguments are vacuous. 

In addition to showing that his attorney's performance fell

below an objective standard of reasonable competence, Gill needed

to show that the poor performance prejudiced his defense. Armstead

v. Scott, 37 F.3d 202, 207 (5th Cir. 1994) (citing Lockhart v.

Fretwell, ---U.S.---, 113 S. Ct. 838, 842, 122 L.Ed.2d 180, 189

(1993)), cert. denied, ---U.S.---, 115 S.Ct. 1709, 131 L.Ed.2d 570

(1995). When either element of the ineffectiveness claim is not

proven, the petitioner is not entitled to relief. Strickland v.

Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 2069, (1984). Gill

has not shown prejudice.

Gill's ineffectiveness claims depend entirely on the validity

of his double jeopardy claim. Because this Court has already ruled

that the double jeopardy clause does not apply to parole revocation

proceedings, the failure of counsel to advance the jeopardy claim

could hardly be deemed unreasonable or prejudicial to Gill. See

Gill v. Texas, supra. Since his argument that he was deceived into

pleading guilty was based on the ineffectiveness claim, that
5

argument is invalid as well. 

Equally meritless is Gill's contention that the state court

violated his due process rights by failing to address his preconviction habeas petition. Infirmities in state habeas corpus

proceedings provide no basis for federal habeas relief. Duff-Smith

v. Collins, 973 F.2d 1175, 1182 (5th Cir. 1992), cert. denied, ---

U.S.---, 113 S.Ct. 1958, 123 L.Ed.2d 661 (1993). 

Gill's last two claims assert that the state lost jurisdiction

after he filed for federal relief and that the state violated his

right to due process and equal protection by continuing with the

prosecution before the federal court finished review of his

jeopardy claims. However, mere filing for federal habeas relief

does not affect the power of the state to continue with its

proceedings nor the validity of those subsequent proceedings.

While the federal court may grant a stay of the state proceedings

under 28 U.S.C. § 2251 (and here the court did not), "if no stay is

granted, any such [state] proceeding shall be as valid as if no

habeas corpus proceedings or appeal were pending."

The district court dismissed Gill's petition for abuse of the

writ. We uphold the dismissal as proper but on the grounds that

Gill's underlying habeas petition was without merit. The Court

affirms on these other grounds as it may do. Thyssen Steel Co. v.

M/V Kavo Yerakas, 50 F.3d 1349, 1354 (5th Cir. 1995).

AFFIRMED.